Sunday, July 31, 2022

Child Factory Labor?

I recently posted about how the world has changed in the decades since workers' compensation came to Florida in 1935. Florida was not among the first states to adopt this abrogation of the common law. In fact, we were among the last. Perhaps the legislators were sitting about in the 1920s and essentially reassuring each other "this is just another fad?"

In The 1979 Response and History, I concluded that Florida workers have gained much over the last 87 years. I noted a couple of federal laws that enhanced the safety and bargaining power of employees. I mentioned child labor laws. Many do not recall that the Keating- Owen Child Labor Act passed in 1916. It took years to shepherd through the legislative process.

What many do not know is that the United States Supreme Court concluded that the law was unconstitutional. Hammer v. Dagenhart, 247 U.S. 251 (1918). The Court in Hammer was Justices White, McKenna, Holmes, Day, Van Devanter, Pitney, McReynolds, Brandies, and Clarke. The Court in those days took a bit less expansive view of the Interstate Commerce Clause, and there was some respect for and deference to the ability of states to regulate activities and issues within a state. The evolution of child labor in the courts, from Hammer on is interesting. 

Then, in 1938, the Fair Labor Standards Act (FLSA) was passed. In U.S. v. Darby, 312 U.S. (1941) the United States Supreme Court unanimously concluded that the same Interstate Commerce Clause did empower Congress to regulate child labor and a variety of other constraints within states. This was a reversal of Hammer and other cases, and a stark reversal of the respect for federalism demonstrated previously. The Court in Darby was Justices Hughes, Stone, Roberts, Black, Reed, Frankfurter, Douglas, and Murphy. In the 23 years since Hammer, the justices had all been changed. The Commerce Clause had not. 

Some cynics might say the only thing that changed was the members of the Court. The Court relied heavily upon Gibbons v. Ogden, 22 U.S. 9 (1824), one of the early Commerce Clause cases. Of course, Gibbons predated Hammer by almost a century, and thus was precedent when Hammer was decided. The Court in Darby explained that it really did not matter whether goods were ever shipped in interstate commerce. It noted that some goods might be intended or expected to be moved in interstate commerce following manufacturing, but that intent was not the critical issue. Instead, the overall impact or effect of goods on interstate commerce rendered regulation of the employee/employer relationship within the authority of Congress. This reading renders virtually every good and service subject to federal authority. 

Imagine what people would say today if the Supreme Court overruled a case perceived as clear precedent and reached a seemingly opposite conclusion. Perhaps business owners back in 1941 were marching on the Capitol to protest Darby and insist on their rights under Hammer? Of course, within a year, "some people did something," a great many Americans perished at Pearl Harbor, and the country was plunged into a war that challenged American resolve, business, and citizenry perhaps as never before. If there had been protests, perhaps a great national urgency quelled any dissent about this expansion of the Commerce Clause's reach?

So, for about 84 years, child labor in the U.S. has been regulated at the federal level, and thus largely uniform (states can always provide greater protection than the baseline in a federal law). Many who speak publicly on workers' compensation remind us periodically of the Triangle Shirt Waist fire in New York. There is sound basis to argue we have workers' compensation in large part due to that tragedy. 

Notably, however, that facility, according to History.com, "was a true sweatshop," in which "nearly all the workers were teenaged girls who did not speak English and worked 12 hours a day, every day." But, the world has changed. Perhaps the drive for child labor laws was similarly driven by the tragedy in New York and the deaths of so many young workers at the Triangle factory (not really a factory, but a production facility located in essentially an office building in New York City). 

In July 2022, MSN ran a story regarding a little town, Luverne, Alabama. The town made the news when a thirteen-year-old "Guatemalan migrant" briefly disappeared there. This led to the allegation "that she and her two brothers, aged 12 and 15, were not attending school and (instead were( working at" a "metal stamping plant" in Luverne, "which supplies parts for the Hyundai assembly line in nearby Montgomery." 

The FLSA says that 12 and 13 year-olds may only work in non-hazardous jobs on farms with their parents. It says that 14 and 15 year-olds can work in "jobs not declared hazardous by the Secretary of Labor. But, all of this is allowed only "outside of school hours." Thus, there are allegations of violations of child labor laws in Alabama in 2022. In any business environment, it is perhaps possible that some aberration might occur and an underage person might gain access surreptitiously. But, that is harder to fathom as regards 12, 13, and 15 year-olds. One might also wonder how truancy laws and the schools did not bring this to light. 

There are those who are quoted in the story verifying the allegations. One claims that there "were around 50 underaged workers working at the facility." Thus, there is some inference that this was not an aberration(s) or exception, but a systemic failure. The car company, however, "denies any allegation that it knowingly employed anyone who is ineligible for employment." The truth, perhaps, will require some time to ascertain with confidence. It is imperative to remember that allegations are easy to make and in the end what matters is what is proven. 

Whether the workers' compensation laws are better today than when this grand bargain began in the early 20th century is open for debate and discussion. There are a great many protections in place for workers, as noted in The 1979 Response and History. Despite all of that, and the FLSA, is it possible that children are working in factories right here in the United States? If so, are we bothered by the implications of this in a supply chain? See Supply Chain Slavery (October 2020).

Beyond that, are people ready to accept that periodically the United States Supreme Court concludes that its prior course and precedents are not appropriate and that some adjustment is necessary through receding from or overruling such decisions? If that is practical to consider, there is some reason to wonder if the present Court might overrule Darby at some point, retreat to Hammer, and afford dignity and respect to the concept of limited powers of the federal government and the commitments of the plain meaning of the Tenth Amendment to the Constitution. 
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
Much of where we are as a nation is rooted in our laws, including federal, state, and local. We may perceive that various people respect such laws or not, and we may complain when we perceive someone as not following the laws. But, might it be that our laws are not perfect, and in some instances not appropriate? The Supreme Court so decided in Darby. Other examples might spring to mind. In the end, there is value in stability and predictability, but that value has to be balanced at times against what is right.

The process of judicial review is challenging. It is not found in the constitution, but was invented by the Court and assumed near the time of our nation's birth. Marbury v. Madison, 5 U.S. 137 (1803). That the Court must determine constitutionality is deeply rooted, and subject to the potential flaws of human imperfection. Do we worship stare decisis for the stability, or will the courts re-examine their precedent? Was the Court right in Darby, or in Hammer? Does anyone care? These are indeed interesting times.


Thursday, July 28, 2022

Anonymity and Emotional Intelligence

I recently found myself in the Doge's Palace in Venice, standing before a bocche di leone (lions’ mouth). Several remain throughout the city, each an "intricately carved face . . .with a slot at the mouth into which letters could be inserted." These date to the seventeenth century (1600s), according to National Geographic. Their use persisted until "that French guy came" (as my tour guide phrased it, reminding that this quaint Italian republic was sacked by Napoleon Bonaparte in 1797, and thereafter evolved to a French republic, and then part of the Kingdom of Italy. Napoleon was then the King, and thus perhaps some explanation of my perception that the tour guide was less than enamored with "that French guy.").

Photo copyright 2022 David Langham. Translation is "secret denials against those
who conceal thanks and duty or collude to hide the true income of them."

Venice was not alone. National Geographic notes that “many (governments) had systems for anonymous denunciation of one kind or another." This facilitated an "inquisitorial” system in which "inquiry would be started from a public accusation which often involved witnesses, or a secret denunciation.” In Venice, the accusations were allegedly taken more seriously when they were signed instead of anonymous. My tour guide in Venice contended in that system the unsigned complaints were disregarded completely, and that a signed complaint found to lack foundation might lead to prosecution of the accuser. There is some support for this contention on the Internet.

However, that perception of lovely Venice is not unanimous. American author Mark Twain was critical of the potential for anonymity and contended that the boche di leone "doomed many an innocent man." There is surprisingly little history readily available on the world wide web regarding the boche di leone. How did it work, was anonymity respected, were innocents convicted through innuendo and implication? That, I fear is lost to history, subject to perspective perhaps, and left to the reader.  

Imagine having something to say, and yet fearing blow-back or even retribution. I have heard from lawyers for years regarding their perceptions of the Florida workers' compensation system, and those who run it. Their many thoughts and the promise of constructive feedback led to the implementation of the annual joint survey implemented by the OJCC and The Florida Bar Workers' Compensation Section. It was designed for our customers to have a chance to be critical and suggest constructive change. Unfortunately, there are some in this community that are less than constructive at times, and some who confuse "critical" with terms such as "belittling," "insulting," and "defamatory."

This phenomenon is not limited to the OJCC survey. Author and radio host Diane Hamilton notes in her blog that the Internet has encouraged opportunities "where people make their anonymous comments." These include some that they "might not otherwise have made should they have had to have their name or face associated with their remarks." Some people lurk in the shadows with their criticism and worse. She notes that on the Internet "many comments are made by children under 18 and some of those comments may be just dismissed as immature." Note she says "many," but adults are making such attacks also. And, in our context, no children are participating in the annual survey. No one can claim youthful indiscretion, but could perhaps plead emotional immaturity. 

Some contend that a certain segment of society seeks anonymity. In The Many Shades of Anonymity, the authors contend "the desire for anonymity from users has led to the creation of anonymous content contribution platforms" on the Internet. The authors note that some research supports that "anonymity strongly influences user behavior – online and offline." They note that at times "humans turn aggressive and violent in situations in an environment that is less constrained by social norms," and may "exhibit a disinhibition complex within communications in an anonymous setting."

Why the angry comments (or worse)? Ms. Hamilton contends that "people who write these posts have little consideration of the feeling of others," that they evidence "a lack of interpersonal skills." She questions how to categorize the motivation for such comments and contends that some people may have "more issues with emotional intelligence than others." She briefly explores the potential, noting that some age and gender distinctions between groups have been noted in some research on emotional intelligence. It is an interesting read.

Back to the OJCC Survey and our effort to afford the public, our customers, the chance to make Florida workers' compensation better. The opportunity has been afforded for many years so survey participants may leave constructive suggestions. While some doubt the anonymity of the survey, I certainly have no capacity to learn the identity of any respondent or comment-maker. 

In the survey's anonymity, unfortunately, there is some potential for spewing of venom. We are blessed to get a great deal of constructive feedback, suggestions, and information. However, there are also  comments left that are certainly not the "constructive" criticism that is solicited. There are some that evidence a sad lack of emotional intelligence and maturity. Periodically, perhaps, some comments even cross the line towards defamation. Of course their anonymity prevents the prosecution or challenging of the emotionally stunted author(s)(proving the anonymity perhaps). But, their petty commentary is perhaps tortious or violative nonetheless.

Violative of what? The Florida Bar Professionalism Center strives to remind that "a lawyer must avoid disparaging personal remarks or acrimony toward opposing parties, opposing counsel, third parties or the court." This is the professional course, but professionalism is largely aspirational and many lament the lack of firm definitions or parameters. Thus, consider instead the Rules Regulating The Florida Bar, which might be of more persuasive impact. Rule 4-8.4 provides succinctly that "A lawyer shall not:"
"(d) engage in conduct in connection with the practice of law that is prejudicial to the administration of justice, including to knowingly, or through callous indifference, disparage, humiliate, or discriminate against litigants, jurors, witnesses, court personnel, or other lawyers on any basis."
I do not read any of the survey comments except my own, unless asked to do so. Some of you have had some interesting and even angry things to say about me over the years (sorry, you have not hurt my feelings as yet). Such comments occur even outside the anonymity of the survey, for instance in pleadings. I had a lawyer approach me years ago regarding a pleading s/he had filed in anger and frustration. The lawyer sheepishly apologized privately for the venom that had been spewed there publicly. The apology was sincere, and I reiterated that I take no criticism or venom personally. 

But, it is interesting that this lawyer felt no need to make the apology as public as had been the original and unnecessary ad-hominem attack. I felt sorry for the embarrassed and chagrined lawyer. And, while my feelings have not been hurt, it is perhaps harder for some to accept such petty, personal affronts. 

In 2022, I was provided a comment by one of our state mediators. It was untoward, angry, and unfortunate. In all-caps, screaming, the survey participant had proclaimed:
If one were petty, they might point out that spell-check might enhance one's credibility with such a rant (is it spiteful to says so?). It is not very nice to point out someone cannot spell. I apologize here publicly for pointing it out. This is not the only survey comment brought to my attention this year, but it is among the worst. It is perhaps supportive of a broad conclusion that the anonymity provided is ill-advised generally, or that some in the Bar lack the maturity to self-regulate in such an environment (only Bar members were invited to participate in the survey). 

How does such venom make the workers' compensation community better? How does this angry rant perform any positive function? How is this anonymous comment not violative of Rule 4-8.4? It is unquestionably "callous," "indifferent," "disparaging," and "humiliating."  Was some other, constructive, import of the all-caps comment intended? Did the author intend it as "supportive," "encouraging," or "remediating?" I would really appreciate someone explaining how such a rant is constructive or productive.

There are those who contend that ranting is positive in a cathartic sense. However, others argue that psychological research supports "that venting, far from releasing anger, actually makes it worse." There is some suggestion that ranters "experience() many negative consequences related to anger, such as verbal and physical fights, damaged relationships, property damage, and dangerous driving." The author of a Psychology Today article asserts that instead of forestalling it, "venting may increase the likelihood of subsequent aggressive behavior." 

He argues that "anger does not have to be expressed through aggression," but that people can "express their anger in constructive ways." Perhaps, by making suggestions for change in the system as the survey comment opportunity is intended? Perhaps instead of ranting from the solitude of keyboard courage, one might instigate a conversation about the perceptions above? An attorney so inflamed as to issue this vitriolic insult to a fellow attorney and state mediator might have been better served by sitting down with that mediator or their local Deputy Chief Judge to discuss their perceptions, frustrations, and upset? Does anyone think keyboard courage vitriol is really a better path to addressing a perceived difficulty or problem? Can insults and all-caps really change anything?

I am sorry for the mediator that received this childish and rancorous rant. It is immature, inappropriate and simply sad. However, I am frankly more sorry for the poor, tortured, attorney out there that lacks the emotional and professional maturity to express her/himself more readily and constructively. I am hopeful that this attorney's aggression and anger is limited to this anonymous little corner of the Internet and is not reflected in the attorney's relationships with family, friends, and professional colleagues. 

In that vein, have often suggested that we might each impact others. See Starfish (February 2022). You can make a positive impact on people around you. You may choose to channel Your Inner Pooh (January 2017) or be one of the Eoyores (that) walk Among Us (November 2019). Certainly, the lives of attorneys are stressful. Certainly, days are punctuated with successes and disappointments. Clients, opposing counsel, witnesses, and more can bring stress and angst, and lawyers live with a tremendous amount of transferred and assumed stress. This is a challenging profession and practice, there will be disappointment, stress, and perhaps even anger. How can we deal with that? How can we del with that positively?

We never know what someone else is going through, or how bad her/his day actually is. When someone loses their temper with me, I strive to immediately wonder what is going on her/his life of which I am unaware. What pain, stress, or challenge are they facing, or worse internalizing or ignoring? Respecting that people may be severely stressed, ill, or otherwise challenged, do they have therefore some right to hunker behind their keyboard and spew venom and vitriol? Simply stated, no it is no excuse. It is my hope that the person that penned this poison comment, and similar comments elsewhere, was merely having a really bad day. It is my hope that day ended, and their vitriol and anger passed. I hope they found peace or sought help. I certainly hope they did not carry that anger home. 

I am saddened in the end. A process is provided through the survey for professionals to provide feedback and suggestions. Their anonymity, as professionals, is respected completely. They are facilitated and engaged. I appreciate the many of you that have taken that responsibility seriously and sincerely. Your participation in the survey has greatly benefitted this Office, the community, the Bar, and more. I have appreciated your suggestions, ideas, and collaborative attitude. Much of what we are today came through the exchange of suggestions and even frustrations/complaints.

As much as I appreciate and respect those who have employed the opportunity appropriately, I regret those that have devolved to unprofessional, childish, and stunted insults. I suspect that those who make such comments likely speak to their associates, friends, and confidants about their venting and aggression. Perhaps sharing or bragging may be part of their attempted and untoward attempt at catharsis? I have no desire to know who these commenters are, but if one engages you to brag about their vitriolic vomit, might you remind them of their professional obligations? Maybe you could encourage them to seek help with their anger and emotion before it inflicts real harm on them and those around them?

Thanks for considering the foregoing. I recognize that this is a post about an nanoscopic population of attorneys, a negligible sub-set that incline for whatever reason(s) to anger and insult. I pity them, and I apologize to the community, The Bar, and all of its leaders for my foregoing focus on the problem and challenge that this petty, immature, and anonymous minority presents.  

Tuesday, July 26, 2022

The 1979 Response and History

In The 1972 Report re 1935 (July 2022), there is comparison of the initial 1935 Florida workers' compensation law to 2022. Against the 1980 premise of presidential candidate Ronald Reagan's famous “are you better off today than you were four years ago?” the post suggests that in a broad analysis Florida workers' compensation offers a greater potential breadth and volume of benefits to injured workers than the 1935 law. Conceding that the analysis of whether one is or is not "better off" is likely subjective and perhaps complex, it may be that workers are in fact better off in 2022 Florida than they were in 1935 (87 years ago). Are they better off than they were 50 years ago (or, 42 years ago after passage of the 1979 law?)

In economic terms, presuming a zero-sum equation, the conclusion that workers are better off would mean that employers are not better off. In the spirit of a Grand Bargain, that is a compromise between the interests of two protagonists, one might anticipate more equality or parity. Some might argue, however, that the workplace relationship of the 19th century was not even arguably equal and thus the advent of workers' compensation in the twentieth century was an intended gain for labor (and corresponding loss for employers) to draw employees toward parity. These same commentators might suggest that the notable gains of employees illustrated in The 1972 Report re 1935 (July 2022) are best viewed as merely more progress toward parity.

It is fair to question whether workers' compensation, or any social legislation, is ever a zero-sum equation. It is possible that better workplaces, increased safety awareness, more ready delivery of medical care, and other attributes could be a simultaneous benefit to employees, employers, and the workplace synergism. In short, one might debate whether each individual gain must have an equal and corresponding burden. Notably, one might concede each such benefit has some short-term financial burden. Additionally, if one accepts the premise that it may not be a zero-sum system, perhaps that argument remains potentially persuasive regardless of whether a particular such benefit inures to employees or employers?

There can be some debate as to the balance of comparative rights and responsibilities in the workplace. Any critic of disparity in that relationship might well consider that the 20th century brought workers' compensation, child labor laws, the Occupational Safety and Health Act (OHSA), the Family Medical Leave Act (FMLA), the Americans with Disabilities Act (ADA), the National Labor Relations Act (NLRA), the Railway Labor Act, the Fair Labor Standards Act (FLSA), and more. What corresponding benefits inured to employers as regards these various burdens?

Some might suggest that, long before the 1972 National Commission Report, American labor enjoyed significant gains in safety, compensation, protection, and bargaining power. The combination of the foregoing may be viewed as materially altering the employer/employee relationship in favor of employees; to advantage or merely to or towards parity? Was there some corresponding benefit conferred upon employers in exchange for those alterations, some grand bargain?

Despite those significant, persistent, and varied employee gains in the 20th century, the 1972 Commission concluded that more was necessary, or even imperative. Notably, in 1972 when it rendered its report, some gains such as the ADA, FMLA, and OSHA were either not yet enacted or too new for prediction of efficacy and impact.

As a side-note, I have been critical of the composition of the Commission. See Friends, Romans, Countrymen (March 2022). It was loaded with lawyers and academics. No offense to either group, but their perspective is not broadly inclusive or exhaustive. The Commission lacked any pretense of diversity in any context, excluded representation of small business, women, racial minorities, the service sector and more. When considering its recommendations, we must remember also the world has changed a bit since 1972. In short, there is much basis upon which to question the perspective of the Commission then, and the relevance of its perspectives now. From its lofty perspective, however, the group published some "84 recommendations, 19 of which were deemed 'essential.'" In a future post, I will address those 19 in more detail.

In fairness to the 1972 Report and its devotees and acolytes, a natural next question is whether that effort has had a lasting influence. One might pose that question regarding a significant volume of government commission reports over the last 100 years. Government is sometimes quick to appoint a commission on some topic and there have been many trees killed over the years to document and publish their findings and recommendations. The efficacy and impact of most are still worthy of debate and discussion. See Hugh Davis Graham, The Ambiguous Legacy of Presidential Commissions, University of California Press, 1985. Perhaps the jade-colored glasses are a broader general perspective than the National Commission? In fairness, the National Commission was Congressional rather than Presidential, but the criticism or cynicism perspectives may nonetheless hold.

So, what did the 1972 National Commission Report change? First, it was merely a series of recommendations, any changes were through persuasion. Notably, the topics addressed were pre-supposed by Congress in instigating the Commission process (Congress essentially said "answer these questions"). Public trust of the Commission might have been enhanced if it had been asked a more open-ended question regarding what issues were of import and imperative, rather than close-ended directives of what Congress felt worthy of consideration ("list of subjects assigned to us for evaluation by Congress.").

Despite the Commission results being merely recommendations, the Commission concluded that its efforts should be backed by "the threat of or, if necessary, the enactment of Federal mandates" (in other words, "we think we have been persuasive and compelling in answering your pre-supposed priorities, but if not someone needs to bully the states into accepting our thoughts"). It is rare that people are persuaded by threats or coercion. That is not to say they do not work, as we learned from the federalization of state drinking ages and speed limits years ago.

In Florida, the Commission Report did impact legislative opinion. The Papy Commission (named for Charles C. Papy, Jr.) was formed and the eventual result was the 1979 statutory amendments. These have become known in Florida as "the wage loss law," but that name fails miserably at capturing the breadth of change wrought by that law. In short, by 1979 much had changed in the world since 1910, 1935, and 1972. However, much has changed since those 1979 amendments also. How do benefits in 2022 compare with those in 1979 or 1935?

In 1935, Participation in Florida workers compensation was voluntary for either employee or employer. No mandatory coverage. In 1979, coverage was already largely mandatory, subject to various exceptions. (In 2022, Florida mandates participation of employers with four or more employees, section 440.02(16), Fla. Stat., though the challenges of independent contractors, gig workers, specific exclusions, and more complicates this). Coverage expanded after 1935, and was largely compulsory before the 1979 revisions in reaction to the Commission report. It is unlikely fair to credit the 1972 Commission with the current state of Florida's widely compulsory law. 

In a recent legal program, one of the deans of Florida's law discussed his perceptions of diminishing employee benefits, without mentioning the "race to the bottom" argument periodically quoted. But, he characterized that "since the Papy Commission," Florida has moved "backward and backward and backward." This is an interesting perspective, and is perhaps directed more at burdens of proof such as "clear and convincing" evidence, the major contributing cause standard, the "level playing field" of section 440.015 and similar proof changes that define the pursuant and obtention of benefits more so than the benefits themselves. 

Or, perhaps there is an argument that benefits themselves have regressed; one might make that argument as regards temporary benefits that are currently available for more than 104 weeks in total because of court action rather than legislative. Through that lens, the legislature's 104 weeks is certainly more constrained than the benefit level in 1935 or 1972. But, it is not the benefit level actually available. This argument seems to be that benefits have regressed in legislative though not actual duration and may be a more valid criticism of perspective or sentiment rather than of actual benefit volume. 

The Florida courts after 1935 invented, implemented, and enforced a "liberal construction in favor of employee," which was not in the statute. In deciding what the Florida law meant, the courts periodically declined to read the statute as written and instead turned to a multitude of decisions from other states. The 1979 law did not create nor reinforce these judicial creations, which long predated the Commission and its recommendations. The present "level playing field" since 1990 corrected judicial interpretation and liberality that was never part of the workers' compensation statute, not part of the Grand Bargain in Florida, and perhaps not pertinent to the discussion of the 1972 Report.

Medical care in 1935 did not specifically include attendant care. That had been added to the law before 1979 however. No medical transportation was provided in the 1935 law, but that had been "liberally" construed into the statute in 1964. Mobley v. Jack & Son Plumbing, 170 So. 2d 41 (Fla. 1964). Transportation for medical care had been codified in section 440.13(4) prior to 1979, and cannot likely be therefore viewed as a response or reaction to the 1972 Report.

What was compensable in 1935? Accidents were. Emotional injury was not mentioned in the statute. Occupational Disease was not in the statute until 1945. Some of the early cases finding such disease instances compensable inferred compensability from reference to other state decisions (1937), inferred more generally (heart attack in 1962; aneurysm in 1978). Coverage of Occupation Disease had been included in the statute with the adoption of section 440.151, Fla. Stat. in 1945. This addition to worker's potential benefits cannot be said to have emanated from the 1972 Report.

Repetitive trauma injuries were not mentioned in the 1935 statute and were not "accidents" or compensable until the Court inferred compensability in 1980. Festa v. Teleflex, 382 So. 2d 122 (Fla. 1st DCA 1980). There are curiosities in this judicial expansion. The Festa decision seemingly ignored long-standing precedent that had held repetitive trivial trauma not included in the statute. One might argue that what changed is the 1972 Report, thus "public sentiment," and perhaps the Court's expansion was driven by that sentiment instead of the law. Perhaps a case could be made that the 1972 Report resulted in or influenced the compensability of repetitive trauma.

Permanent total disability (PTD) in 1935 was paid at 50% to 60% of AWW, depending on number of dependents. The benefits were capped at about 7 years (350 weeks) of entitlement. The 1979 law changed this to 66 2/3% (which remains in 2022). The seven-year cap had long been removed prior to 1979. Thus the increase in weekly amount could be attributed to the 1979 Report, but not the largely un-capped duration. As that remains in 2022, it is difficult to conclude there has been any retreat from the positive impact of the 1972 Report on PTD.

Death benefits in 1935 were paid at 50% to 60% of AWW, depending on number of dependents. These were likewise capped at about 7 years (350 weeks) of entitlement. In 1979, death benefits increased to include funeral expenses up to $1,000 and compensation benefits payable at 50% to 66.67% depending on number of dependents, capped at $50,000. In 2022, the cap has increased to $150,000, and there is an additional benefit of up to 80 semester hours of classroom education to surviving spouses. The percentage calculation (66.67%) is clearly attributable to the 1972 Report and recommendations. The duration of, cap on, benefits was not purportedly changed in 1979, and the additions to the death benefit largely occurred after the 1979 amendments. It is difficult to attribute significant credit for the modern, more robust, death benefit provisions to the 1972 Report.

Temporary Total (TTD) in 1935 was paid at 50% to 60% of AWW, depending on number of dependents, and capped at about 7 years (350 weeks) entitlement. The 1979 law increased this to 66 2/3%. The increase in weekly benefit, which persists in 2022, is likely attributable to the 1972 Report. While there has been fluctuation in the durational cap, the cap was 350 weeks prior to the 1979 amendments and remained so in 1979. It is notable that the duration cap in 2022 is 260 weeks (about 5 years), and is so by action of the Court rather than legislative amendment (this had been legislatively reduced to a combined 104 weeks of TTD and TPD in 1994). In temporary benefits, the increased weekly amount is attributable to the Report, but the duration-cap discussion is far more difficult as a direct corollary or effect. The decrease of the cap is, perhaps, supportive of Mr. Pierce's criticism of reduction of benefits, see The 1972 Report re 1935 (July 2022).

Temporary partial disability (TPD) in 1935 was paid at 50% to 60% of AWW, depending on number of dependents, and capped at about 5 years (260 weeks) of entitlement. The 1979 law changed this to "95 percent of the difference between 85 percent of the employee's average monthly wage" and the post-injury earnings. In instances of zero earnings post-injury, this was mathematically a potential 80% of pre-injury earnings (.85 x .95), but was capped at 66 2/3%. This increase in weekly benefit is likewise fairly attributable to the Commission Report. The durational cap in 1979 was 5 years. Thus the duration in 1979 remained similar to the 1935 statute, and remains similar in 2022. It is fair to credit the Report some in TPD as to weekly amount, but the impact is narrow and there are no indicia of any retreat from the Commission recommendations (but see discussion of combined duration caps above in TTD).

It is fair to attribute accommodations for retraining and education to the 1979 law. This included the requirement for payment of temporary indemnity benefits, subject to the caps discussed above, for periods in which a worker engaged in training and education. While this benefit can be thus validly attributed to the 1972 Report, the impact of training and education has been frustrated in broadly reducing either disability effects or enhancing employability. There are various reasons debated regarding these impacts, but the concept is clearly attributable to the 1972 Report.

Permanent partial disability (PPD) in 1935 was paid at 50% to 60% of AWW, depending on number of dependents, and capped at about 5 years (260 weeks) of entitlement. These benefits were largely tied to anatomical loss or loss of function. A major impact of the 1979 law was the implementation of "wage loss" that would pay 66 2/3% for up to 10 years following maximum medical improvement. This major change can be fairly attributed to the 1972 Report. The volume of permanent partial has been markedly diminished in some cases since that time, and PPD is often noted by commentators in support of arguments that benefits are diminishing. 

In 2022 PPD is these are tied to impairment rating, and the 66 2/3% calculation. Thus, some of the addition attributable to the 1972 Report remains, the impairment model of 1935 has largely returned, and potential entitlement of the cap is arguably much more significant now than in 1935, and similar to the maximum allowed in 1979 (10 years). The impact of the Report in PPD is more profound, and the retreat to pre-1979 law is more patent. However, benefits remain in 2022 arguably consistent with the original Florida Grand Bargain.

In 1935, there were only four statutory presumptions in the Florida statute: (1) The claim comes within this law’s provisions; (2) that sufficient notice was given; (3) the injury was not caused by intoxication; (4) injury not caused by willful intent to injure or kill. In short, there were no presumptions for heart/lung disease, cancer, PTSD, or otherwise. Those presumptions had been deleted prior to the 1979 law changes. The 1979 law change did not include the various presumptions that exist in 2022 for treating certain diseases more generously for certain employees, such as "tuberculosis, heart disease, or hypertension," certain mental injuries (PTSD), and exceptional benefits for certain cancers. It is fair to conclude that the 1972 Report did not instigate change regarding presumptions.

There was no provision in the 1935 law to encourage the hiring/retention of individuals with impairments or disabilities. There was no state law implementing a second injury fund assessment to encourage such employment. Florida added a Special Disability Trust Fund, a "second injury" fund prior to 1979, but its scope, application, and operation are significantly defined in that 1979 law. It is fair to attribute this change to the 1972 Report, and while its operation benefitted employees, this is one of the changes that also had a positive impact on employers in socializing risk more broadly.

In The 1972 Report re 1935 (July 2022), I concluded that the Florida workers' compensation law notably, perhaps significantly, offers broader and greater potential benefits to injured workers in 2022 than did the 1935 law. It is noteworthy that the constitutionality of the 1935 act was considered by the Florida Courts, but never deemed infirm. There are various examples, but the following are interesting reading: State ex rel. Jacksonville Gas Co. v. Lewis, 170 So. 306, 307 (1936); S. Atl. S.S. Co. of Delaware v. Tutson, 190 So. 675 (1939); Hardware Mut. Cas. Co. v. Carlton, 9 So. 2d 359 (1942).

While there are also demonstrative examples of benefits regressing, such as the 104 week cap on temporary benefits in 1994, the basket of benefits available in 2022 is strikingly similar to those available under the 1979 amendments, the reaction to the 1972 Report. There are points on which debate may yet occur, including permanent partial disability, but overall the gains for injured workers in the 1979 amendments remain in 2022. And, the broader context of change in federal laws mentioned above each remain. In short, the last 100 years has been demonstrably favorable to the worker.

This is not to discount that some see the states moving away from the 1972 Report recommendations of the Commission. I respect the recent notation that whenever "a benefit goes up, something is taken away." (see Observers Say States Moving Away from National Commission Recommendations, WorkCompCentral, July 12, 2022; pay site). I know some of the laws across the country, but an analysis of this magnitude of each state is beyond my capacity. In any such discussion, whether such observations are valid will depend entirely upon which state's law is being examined and perhaps on how detailed and focused the analysis is.

Whether Florida workers or employers or both are "better off today" than in 1935 or 1979 is up to the reader. However, the Florida response to the 1972 National Commission Report, the statutory reforms in 1979 discussed above and the current benefit measures in 2022 (breadth and duration) are worthy of consideration.

In the end, regardless of your perspective, participation in the debate and discussion of workers' compensation is critical. We must all be respectful of the contributions and opinions that are put on the table, and conversations need to be frequent and congenial. That will be the case at the 2022 Tennessee Workers' Compensation Conference on August 15, 2022 in Nashville. 

I look forward to an animated and engaging conversation with Hon. Paul Sighinolfi, Mr. Pierce (employee attorney, Massachusetts) and Ms. Fazio (Employer attorney, Tennessee). This discussion promises to be a balanced consideration of the historical significance of the report, the state of workers' compensation today, and the challenges of our perceptions of it all. If I get too long-winded, someone kick my shins and I will shut up and give others a chance.

Sunday, July 24, 2022

The 1972 Commission Report re 1935

In 1980, Presidential candidate Ronald Reagan purportedly asked "one of the most important campaign questions of all time." In a debate with incumbent President Jimmy Carter, Mr. Reagan asked generally: “Are you better off today than you were four years ago?” The Harvard-Kennedy School notes that:

"The 'better off' question has been with us ever since. Its simple common sense makes it a great way to think about elections. And yet the answers are rarely simple."
I would add that each person's answer is also likely to be very subjective. In the real world it is perhaps unlikely that everyone will perceive being better off in any competitive exchange, such as an economy in which there are inherent gives and takes.

Hold those three points in check for a moment, the "better off," the "gives and takes," and the "rarely simple."

In March 2022, I was honored to speak (briefly) at the Workers' Compensation Research Institute (WCRI) conference in Boston, see Friends, Romans, countrymen, lendme your ears (March 2022). I have, there and elsewhere, noted some people's captivation by and reverence for the Report of the (1972) National Commission on State Workmen's Compensation Laws. That was a diverse panel from the standpoint of perspectives. What was scheduled as a three-person discussion at WCRI unfortunately became somewhat one-sided as significant program time (a bit more than half) was appropriated by one perspective. I applaud the passion with which that perspective is held and was delivered that day. However, I am a firm believer that there are many perspectives on this world of ours, and a panel is, after all, a panel (if someone wants an hour of your perspective, they will invite you to present or keynote, not as a panel participant).

I was reminded of that panel more recently when the United States Department of Labor sponsored a panel discussion regarding the Panel Discusses Legacy of the 1972 Report; Effectiveness of State Systems As an aside, without explanation or even footnoting, the persistent use of "workmen's" regarding that report in various texts is troubling. Admittedly, that word is undoubtedly and indelibly in the title of the 1972 Report. However, society has moved on and "workers" today is more more acceptable; our workplaces are more diverse, vibrant, and inclusive. We may acknowledge that old vernacular, and yet acknowledge it was genderist and inappropriate then and remains so now.

The panel at the United States Department of Labor was focused specifically on half of the Grand Bargain, asking "Is the Workers’ Compensation System Serving Injured Workers?” The panel included Professor John Burton, an emeritus professor at Rutgers University and the Chair of the 1972 Commission. Law professor Emily Spieler, Northwestern University School of Law was included, as was workers compensation attorney Alan Pierce. The panel was completed by "the department’s Office of Workers’ Compensation Programs Director Chris Godfrey."

I received an inquiry regarding a news story published about the panel. This essentially questioned whether this was a broad-perspective panel or was it tilted to academia and injured workers? The inquirer seem to feel a federal government effort would be balanced. I explained my perception that the initial explanation of the program was essentially about injured workers, and that there did not seem to me to be any pretense or suggestion that the discussion or panel would be about the efficacy of workers' compensation systems in the broad context suggested by the caller. The caller argued that a portion of the title "Effectiveness Of State Systems" had given the impression of a broader and more balanced analysis. Everyone is entitled to their opinion. Should this have been a more diverse panel?

Coincidentally, I have been invited to attend the Tennessee Workers' Compensation Conference on August 15, 2022 in Nashville (Murfreesboro), specifically to participate in a panel discussion of the relevance and importance of the 1972 Commission Report. The program will be moderated by the Hon. Paul Sighinolfi (former executive director and Chair of the Maine Workers’ Compensation Board). Chair Sighinolfi is among a very small cadre of national thought leaders of American workers' compensation. As an aside, it is unfortunate that cadre is so small. Also at this Tennessee conference, one leader will transition to retirement. American workers' compensation is not ready to be without Abbie Hudgens, and it is hoped that despite her retirement as Administrator of the Tennessee Bureau she will persist in her presence and contribution; more on Administrator Hudgens in a future post. 

Mr. Pierce will be among the panelists in Tennessee, and he is a devotee of the 1972 Report. We will be joined by Adrienne Fazio of Nashville. I am hopeful that any potential critics will note that this panel includes an attorney representing primarily injured workers (Mr. Pierce), an attorney primarily representing employers (Ms. Fazio), a judge (the adjudicatory process) and a former state administrator (Mr. Sighinolfi). While this may not present all possible perspectives, these systems are really designed for the employers and workers. It is those two constituencies that made (purportedly) the Grand Bargain in the early twentieth century. Discussing one party without consideration of the other may seem to some unbalanced, and it is hoped this is a panel of more balanced perspectives. 

Having noted this balance from my perspective, I must also remind that some take more constrained views of workers' compensation. Many a speaker over the years has proclaimed that workers' compensation is "for" the injured worker or "for" the employer. These views belie the Grand Bargain, "and all that that entails." It takes, as they say, "two to tango," and likewise two to form a bargain. Unfortunately, there are perhaps some in the workers' compensation community that do not perceive the beauty of a balanced, if nuanced, quid pro quo between labor and management. The debate would be more productive if it consistently started with recognition of the Grand Bargain, the two competing interests, and the compromises that inevitably result. 

Back to candidate Reagan's thought process. Perhaps a fair question in 2022, contemplating the Grand Bargain ("and all that that entails") is "are you better off today than you were (50, 87, or 110) years ago?” In the context of the 1972 report, and the interest in its contemplation, perhaps, "are you better off today than you were (50) years ago?” Of course, much has changed in the world since 1910 (110), 1935 (87), and and 1972 (50). Perhaps that changes one's analysis, perspective, or conclusion. Nonetheless, they are all likely questions worthy of consideration.

In the context of the history of Florida workers' compensation, I have examined where the system started in 1935 (87 years ago), and compared that to 2022, amid the persistent modern lamentations and complaints of adequacy. I note the following as regards the 1935 statute, Section 5966, Fla. Statutes:

Participation in Florida workers compensation in 1935 was voluntary for either employee or employer. No mandatory coverage. (in 2022, Florida mandates participation of employers with four or more employees, section 440.02(16), Fla. Stat., though the challenges of independent contractors, gig workers, specific exclusions, and more complicates this). Coverage has expanded since 1935.

The Florida courts after 1935 invented, implemented, and enforced a "liberal construction in favor of employee," which was not in the statute. In deciding what the Florida law meant, the courts periodically declined to read the statute as written and instead turned to a multitude of decisions from other states such as Minnesota, Nebraska, and Oklahoma. Those, presumably, interpreted written statutes that may or may not have resembled Florida's. Huhn v. Foley Bros., 221 Minn. 279, 22 N.W.2d 3 (1946); Newberry v. Youngs, 163 Neb. 397, 80 N.W.2d 165 (1956); Scruggs Bros. & Bill Garage v. State Industrial Commission, 94 Okl. 187, 221 P. 470 (1923).

The 1979 law did not create nor reinforce these judicial creations. These judicial attitudes and platitudes long predated the Commission and its recommendations. While the 2022 law mandates a "level playing field" in section 440.015 (1990, et. seq.), that constriction of the various court's "liberal construction" neither occurred in response to the 1972 report nor reflected any retreat from the Report or its recommendations. While many lament the posture in which the playing table does not today inexorably tilt to one side, the "liberal construction" was never part of the workers' compensation statute, not part of the Grand Bargain in Florida, and perhaps not pertinent to the discussion of the 1972 Report. 

Medical care in 1935 did not specifically include attendant care. No medical transportation was provided in the law. That such transportation was "care" and must have been intended was inferred by the courts almost 30 years after the law was adopted. Mobley v. Jack & Son Plumbing, 170 So. 2d 41 (Fla. 1964). This was also perhaps influenced by out-of-state decisions based upon the “liberal construction” standard, see above. In 2022, medical transportation is not in the statute, but is payable pursuant to the Mobley decision. Medical care entitlement has expanded since 1935.

What was compensable? Accidents were. Emotional injury was not mentioned in the statute. Occupational Disease was not in the statute until 1945. Some of the early cases finding such disease instances compensable inferred compensability from reference to other state decisions. Alexander Orr, Jr., Inc. v. Fla. Indus. Comm'n, 176 So. 172, 172 (Fla. 1937). Compensability of heart attack was created by the Court in 1962: Victor Wine [& Liquor, Inc. v. Beasley, 141 So. 2d 581 (Fla. 1962). Compensability of aneurysm was created by the Court in 1978 Richard E. Mosca & Co. v. Mosca, 362 So. 2d 1340 (Fla. 1978). (In 2022, occupational disease is in the statute, section 440.151, Fla. Stat.). Coverage has expanded since 1935.

Repetitive trauma injuries were not mentioned in the statute and were not "accidents" or compensable until the Court inferred compensability in 1980. Festa v. Teleflex, 382 So. 2d 122. This was an inferential extension of the previously inferred occupational disease, and a “a long, well established history of awarding compensation benefits” borrowed from the "liberal construction in favor of employee." The Festa case seemingly ignored long-standing precedent that had held repetitive trivial trauma not included in the statute. (In 2022, repetitive trauma is still not in the statute, but is compensable under the Court's legislation/interpretation). Coverage has expanded since 1935.

Permanent total disability was paid at 50% to 60% of AWW, depending on number of dependents. The benefits were capped at about 7 years (350 weeks) of entitlement. (In 2022, these benefits are payable at 66.67 percent of the AWW until age 75 or for life if the worker is not eligible for Social Security). Both weekly amount and potential duration of this benefit has expanded since 1935.

Death benefits were paid at 50% to 60% of AWW, depending on number of dependents. These were likewise capped at about 7 years (350 weeks) of entitlement. (In 2022, death benefits include funeral expenses up to $7,500, compensation benefits payable at 50% to 66.67% depending on number of dependents, capped at $150,000, and up to 80 semester hours of classroom education to surviving spouses). The volume of death benefits has expanded since 1935.

Temporary Total (TTD) was paid at 50% to 60% of AWW, depending on number of dependents, and capped at about 7 years (350 weeks) entitlement. (In 2022, TTD is paid at 66.67% for up to 260 weeks [about 5 years]). While the volume of potential entitlement is less [90 weeks, about 1.7 years], the amount of potential weekly benefit might be seen as greater today, while some might instead focus on the diminished potential duration.

Temporary Partial was paid at 50% to 60% of AWW, depending on number of dependents, and capped at about 5 years (260 weeks) of entitlement. (In 2022, TTD is paid at 66.67% for up to 260 weeks (about 5 years)). Though the weeks remain the same for potential entitlement, the weekly amount is notably higher today.

Permanent partial was paid at 50% to 60% of AWW, depending on number of dependents, and capped at about 5 years (260 weeks) of entitlement. These benefits were largely tied to anatomical loss or loss of function. (In 2022, these are tied to impairment rating under published guides and range from 2 weeks (for a 1% impairment) to 529 weeks (100% impairment, which is unlikely), a cap at about 10 years of potential entitlement.). This benefit would likely draw both praise and criticism regarding whether it is more or less today than in 1935. For some minor injuries, the entitlement is perhaps undeniably lower; however, the potential duration is undeniably more significant at 10 years. 

In 1935, there were only four statutory presumptions in the Florida statute: (1) The claim comes within this law’s provisions; (2) that sufficient notice was given; (3) the injury was not caused by intoxication; (4) injury not caused by willful intent to injure or kill. In short, there were no presumptions for heart/lung disease, cancer, PTSD, or otherwise. (In 2022, there are focused presumptions in 112.18 for "tuberculosis, heart disease, or hypertension," in 112.1815, Fla. Stat. for certain mental injuries (PTSD), and exceptional benefits for certain cancers in 112,1816, Fla. Stat. Notably, there is a presumption of injury being non-compensable if drug use is shown, without showing of "intoxication," see (3) above). There are significantly more statutory presumptions of benefit entitlement in favor of injured workers in 2022. 

There was no provision in the 1935 law to encourage the hiring/retention of individuals with impairments or disabilities. There was no state law implementing a second injury fund assessment to encourage such employment, nor any admonition similar to the Americans with Disabilities Act to preclude discrimination. In terms of protecting workers from the impacts of impairment or disability, perhaps many would agree that a worker in 2022 is better off?

So, we return to the question posed by Mr. Reagan: “Are you better off today than you were (87) years ago?” (when comp was enacted in Florida in 1935). It is suggested that benefits overall are increased for injured workers in the last 87 years. Despite some constraints passed by the elected representatives, the expansions of compensability for repetitive trauma, occupational diseases, and otherwise remain intact. In short, some might argue that Florida workers today are in fact better off under the 2022 statute than they were in 1935. However, The answer to Mr. Reagan's question is, as noted above, likely largely subjective. The statute remains involved with various "gives and takes," and history has involved others. That may be sufficient to convince the reader that this whole analysis is not simple. 

Some today lament a "race to the bottom." See State Line Disputes -is Federalization the Answer (May 2016); Medical Mileage and Legislative Lessons (March 2021); No Driver Wins a Race to the Bottom (April 2018). And coverage of the recent Department of Labor panel discussion noted that some perceive that "when a benefit goes up, something is taken away." (see Observers Say States Moving Away from National Commission Recommendations, WorkCompCentral, July 12, 2022; pay site). The review of Florida benefits above does not patently demonstrate any such "take away," although the legislative correction of court-created perspectives and presumptions might perhaps be argued in that context, and fluctuations in benefit entitlement may be pertinent in various contexts and as to a particular worker. 

Whether Florida workers or employers or both are "better off today" than in 1935 is up to the reader. However, in terms of the basket of benefits, in any particular state, perhaps a broad analysis as illustrated above would be a worthy endeavor. Are benefits in a particular state more or less generous (to workers) or burdensome (to employers) in 2022? Such a detail analysis might or might not be perceived as supporting any subjective perceptions of where workers' compensation is today in a particular jurisdiction.

Largely in response to the 1972 National Commission Report, Florida passed significant statutory reforms in 1979. Some perceived those as progressive. Others found them onerous and regrettable. Perhaps benefit entitlement has diminished since those 1979 revisions? In a future post, I will attempt a similar comparison of 1935 to the Florida amendments in 1979, for the sake of discussion of that perspective.

In the end, regardless of your perspective (subjective), participation in the debate and discussion of workers' compensation is critical. We must all be respectful of the contributions and opinions that are put on the table, and conversations need to be congenial. In that regard, we each need to yield the floor and give equal time to others, regardless of how passionate we might be about our own perspective. I hope to see you in Nashville!

Thursday, July 21, 2022

Public Confidence

In December 2021, NBC News posted an investigative report article "Robed in secrecy: How judges accused of misconduct can dodge public scrutiny." It is an interesting read, and perhaps brings perspective to the challenges of society in comprehending the role of judges. It certainly brings perspective judges need in appreciating the potential for society to have perceptions of this profession, role, and its challenges.

I am reminded of a couple of great lines in Men in Black (Columbia 1997). New Agent J catches Agent K looking in on someone using a satellite, and Agent K quickly closes the image. Agent J kids "that grumpy guy story starting to come into focus a little bit." Agent K absent mindedly rearranges items on his desk. Agent J reassures its "better to have loved and lost than never to have loved at all," to which Agent K replies "try it." The real point of the exchange is that it is hard to appreciate the challenges people face when you have never walked a mile in those shoes. Perhaps there is a reason someone has a "grumpy guy story," and we just don't know it? See Starfish (February 2022).

The NBC News story is disturbing in its own right. Perhaps one may assuage one's conscious by clinging to the premonition that its examples are outliers, exceptions, or even overstatements? However, the examples are troubling in any light and worthy of our consideration and contemplation.

A New York county judge is featured. He is apparently known for invoking “judicial contempt,” having parties handcuffed, and in some instances jailed. Examples include a party that "asked him to recuse himself," "a mother who had an outburst when she felt ridiculed," and "a grandmother who contested turning over her grandson to his allegedly abusive father." Perhaps those individuals were having a bad day and got outside of the lines. Perhaps the judge might have recognized that and guided them back into the lanes before meting out punishment?

The inclination is perhaps to give the judge the benefit of the doubt. That is part of the "being a judge," as Agent K challenged "try it." I have come to accept over the years that "being a judge" does come with some benefits. Lawyers are quick to return a phone call, seemingly happy to shoot the breeze at some seminar, largely deferential, and cordial. This is seemingly true for all judges. 

But, before one is too deferential in the New York example, it is worth noting the same judge has been accused of “undignified comments," "presiding over cases in which his impartiality could be" questioned, and "representing family members and friends in personal cases." As regards such behavior generally, See Revisiting Judicial Discipline (May 2022) regarding judges practicing law. After a recommendation that he be removed, the judge reportedly resigned instead.

There has recently been a fair amount of judicial allegation and discipline in the news. See Sign Language and Curiosities (July 2022), Revisiting a Judicial Discipline (May 2022), and  Another Judge Makes the News (May 2022). We can conclude that the New York story from NBC is not unique. But, the author points us to an interesting impact of the Federalist foundation of our county. 

Federalism describes our governmental process in which there are overarching federal laws and a variety of state laws that are specific to smaller portions of our country. Similarly, within a state, it is sometimes possible for various subdivisions (counties, parishes, cities, towns, districts) to also have regulations and laws that differ from their neighbors. This is aptly illustrated with Oxford, Mississippi, a "wet" city in a somewhat "dry" county, in an otherwise wet state.

NBC notes that when ethics charges are filed against a judge in some states, the allegations become public very early in the process (citing "New Jersey, Pennsylvania(,) or Vermont" as examples). It acknowledges that the timing "can differ broadly among states," and in some instances judges will continue to preside "months or years before even credible complaints are" subject to public scrutiny. The authors quote a legal ethics professor in support that "Judicial misconduct undermines confidence in our justice system.”

The article is also skeptical regarding the comfort one might take from the low volume of judges that are punished. The authors contend that this does not necessarily reflect a functional and appropriate judiciary, but perhaps merely a "lack of accountability." It notes that about 1% of judicial complaints result in a punishment known to the public. 

I anticipate any lawyer you spoke with would likely be able to relate some tale in which they perceived the judge as being out of line, inappropriate, or worse. Whether any report of conduct was ever filed by the lawyer would be an interesting inquiry. as would whether the particular behavior described would be serious and actionable. Why such allegations in a particular instance are not brought to the authorities would also be worthy of consideration.

The NBC authors describe the state discipline processes, including commissions, codes of conduct, and processes for considering complaints. Focus is brought to the fact that judges are under scrutiny persistently and can be disciplined for behavior "inside a courtroom as well as outside, including on social media." That may come as surprise to some, but is absolutely true. As noted in Revisiting Judicial Discipline (May 2022):
“[A] ‘judge is a judge 7 days a week, 24 hours a day,’” 
As agent K challenged, "try it."

There is an insinuation in the article of investigations or at least processes and procedures being unbalanced. This is mentioned specifically in terms of when allegations become public, and there is suggestion that it may also be perceived in the decisions as to whether punishments are "private" or "public." One law professor is quoted critically:
“We have to recognize that oftentimes we have judges judging judges, and they’re ultimately in control and judging their own.”
In terms of public perception, that potential for parochialism is troubling. How the public perceives such complaint processes, investigation, and outcome reporting is important from a perception and confidence standpoint. There are multiple other issues noted by NBC of process transparency, punishment variety, and even the methods state apply in imposing investigatory costs. In short, there is significant variety across the states, and several sources quoted in the article are critical of judges, investigatory processes, and public access to a variety of information involved.

As I have conducted literally dozens of judicial complaints over the last two decades, I am perhaps as well acquainted with the balance questions as any. If the critics cited in the article have been involved in such investigations, that is less than clear. Largely, those "experts" do not appear to have been judges, been involved in supervising judges, or been involved in receiving, investigating, and closing judicial complaints. Their "expertise" as academics or observers may not be as pervasive as one might hope. 

However, what is clear is that anyone can make an allegation against a judge of anything at anytime. Regardless of the expertise of the critics involved in such a complaint, or in the analysis offered by NBC, there is real importance to both the process and the perceptions of the public regarding the process, outcome, and results. We might respect the article's criticism of when and how the public is made aware of allegations. We might also question, however, whether the public any better served if such scurrilous allegations are made public very early in an investigation? What if the allegations cannot be substantiated? What if the allegations turn out to be patently false.

False? In various instances, I have spent hours listening to trial proceedings. In many instances those recordings were never paused or adjourned, and yet some comment allegedly made by a judge or some assertion of right or fact alleged to have been made by some party or witness is simply not present on the recording. In one investigation, when I informed a party that I had listened to the entire recording in search of the alleged comment, the only response was "that was all recorded?" Yes, and that very reaction is perhaps part of why many judges will not interact with lawyers, parties, or witnesses except in a proceeding and with that recorder running. One Judge I know proudly notes periodically "I don't go off the record." 

Will the public be receptive to a "page 10" story that reports dismissal of an allegation? Will it be as receptive to that as it may be to a "page 1" story of the scurrilous and even dramatic allegations when they are made? Is the public confidence in the judiciary thus benefitted from early publication of inflammatory invective even before it is considered and investigated? Would the experts commentating on the topic advocate the same public scrutiny in their law professor occupations? If a student in the professor's class makes an allegation of inappropriate behavior should that be public and "page 1" before investigation? How about if such allegations are made against someone in the news business?

Or, would the public perception be better served if such allegations were appropriately and timely investigated, documented, and determined? Is the path to better understanding through more transparency in the process and outcome, or in early public disclosure of the base allegations? These are difficult questions, but are paramount in the overarching goal that underlies the Code of Judicial Conduct, that judicial behavior "promotes public confidence in the integrity and impartiality of the judiciary?" Canon 2, Code of Judicial Conduct. 

In the end, there is much to think about in the realm of judicial behavior and performance. There are perspectives on the topic worthy of consideration, from the public, academia, the judges, and those charged with investigating complaints and allegations. In all, the process will be challenging and outcomes may at times be controversial from particular perspectives. However, a broader discussion and consideration of the topic would be a worthy start to any analysis. Not all who might comment or opine on the process need be judges or former judges, but an analysis that focuses only upon the perceptions of academics creates its own challenges and doubts. 

Tuesday, July 19, 2022

To Zoom or Not to Zoom

Before Statler and Waldorf get too vociferous, this is a blog about workers' compensation, but it is also about the law and those who practice it. Too much of workers' compensation is wrapped up in the idea of litigation, but in the eyes of those who adopted it as a "self-executing" system, perhaps "any" is "too much?" The Supreme Judicial Court of Massachusetts rendered a May 9, 2022 decision in Adoption of Patty (a pseudonym), 186 N.E.3d 184 (MA 2022). Adoption is a far cry from workers' compensation and Massachusetts a far cry from Florida, but the case bears some consideration, despite Statler and Waldorf.

The challenge there regarded the engagement of Zoom for court proceedings. Essentially, there were allegations that the platform was not adequate and that the due process rights of the parties were compromised by its use. Note that the Florida Office of Judges of Compensation Claims (OJCC) has been using Zoom for trials and hearings since the "Grand Pivot" in March 2020, and that state mediation for the OJCC will soon use Zoom as the default process in days to come. See It's Coming Around Again (May 2022).

The Massachusetts Court noted that the matter proceeded to video proceedings "under a state of emergency declared by the Governor in response to . . . COVID-19." Everyone is familiar with the parade of responses, retreats, and uncertainty that the early days of the Great Pandemic (or Panic) brought. See A Great Hamburger with a Smile (April 2021). In this particular instance, there was a litany of technological challenges that precluded the pro-se mother (a party) from participation "either by video or by telephone." There were interruptions in the testimony of witnesses, and even an admission by the trial judge that "plowing ahead in the mother's absence may be creating an 'appealable issue.'” Hint, seldom is "plowing ahead" a good move when the rights of parties is concerned; once a judge starts to see "appealable issues" that might be ameliorated or eliminated by a brief pause, perhaps a brief pause. 

The trial was reconvened within days to allow the mother to conduct cross-examination and to otherwise remedy the impacts of the technology challenges. By then however, the Court noted, "the damage was done." The trial judge terminated the mother's parental rights, denied a request for a new trial, and the matter proceeded to appellate review. The appellate court concluded that "the trial violated the mother's right to due process under the Fourteenth Amendment to the United States Constitution and" Massachusetts law.

The judge in this instance was precluded from live hearings, and thus essentially forced to video. It is notable that though the OJCC adopted Zoom early, the discretion to conduct live or remote hearings remained intact for JCCs throughout the pandemic. The OJCC respected the independence of our judges. That was perhaps easier for this and other administrative agencies, with control over premises and process, than for courts that are intertwined with courthouses owned potentially by various government entities.

Errors that occurred with the technology in this Massachusetts case included:
The mother was not "provided with instructions on how to join the proceedings."

The trial judge was apprised "the mother wanted to participate, but did 'not have video capacity.'”

The trial judge's compromise was to allow the mother to connect to the Zoom by telephone only. However, she could then "hear but not to see the proceedings."
After the direct exam of the first witness, "the clerk realized that the mother had been disconnected from the virtual hearing room," and when she attempted to rejoin had been relegated to a waiting room.

There was confusion as to whether the mother was connected. The Court noted that "Nothing in the record suggests that the mother understood either that she was being moved to the waiting room or how to ask to be readmitted."

Though the judge provided explanation and instructions to the mother, she did not respond on Zoom. Eventually, "the judge had the clerk disconnect the mother from the hearing altogether," though it was "not clear that the mother could hear the judge's statements."
Despite the challenges, the trial "judge concluded, 'I don't think we have any choice but to continue.'" And, the judge questioned whether the issues was with technology or with some purposeful behavior of the mother (such a question is pertinent, but so is an opportunity for the mother to explain so that the judge can decide if there was purposeful behavior). 
When informed of the mother's challenges, and after she "she moved to conduct the trial in person," "no inquiry was conducted regarding her access to technology that might allow her to participate in the Zoom hearing via video, so as to be on equal footing with the other participants." That accommodation is impossible may be one thing, but that accommodation is never discussed or considered is quite another. 

As the trial judge proceeded without the mother present, the record supported that there were ongoing technical challenges for other witnesses. When the proceedings resumed, the mother was present by Zoom but expressed frustration, swore, and eventually hung up (in the best of settings, pro se litigants can feel challenged and frustrated).

Following the conclusion of the trial, the "judge issued his decision," and "nine months later, he issued extensive findings of fact and conclusions of law in support of the decision." Note that time period. The judge made a decision and then explained it in detail only after a nine-month delay. Justice cannot function in a system in which a human child could be conceived on the day of trial and delivered live after normal gestation before the trial decision is detailed for the parties. This is a red flag. 

While awaiting that order for nine months, the mother sought a new trial, and supported the request with an affidavit explaining her technology issues. The denial of that request and the trial judge's decision were appealed, and the Court opinion goes to great length to explain due process (how much is due, and when, how, etc.). The crux of this centers on distinctions between criminal, civil, and other proceedings and the application of due process.

The Court reiterated a prior holding that concluded that "the risk of erroneous deprivation of these interests because a hearing is conducted via an Internet-based video conferencing platform like Zoom can be 'minimal.'” It is thus absolutely potentially appropriate. However, it is incumbent on the trial judge to "carefully monitor() the technology to ensure it is functioning as intended." Additionally,  "the judge must ensure, preferably in advance of the hearing, that the participants understand the procedures to be used when the technology does not work as intended."

The Court concluded that "it is 'crucial' to suspend trial when technological difficulties arise." Thus, there is much for the trial judge to consider in attempting to shepherd a case through trial. The Court was not unsympathetic to the technology issues with which the trial judge was confronted (unexpectedly and immediately in the beginning of the Great Panic). However, it concluded that it was improper to proceed when there were such technology issues and unanswered questions as to cause.

This is not a workers' compensation case, nor a Florida case. The points made by the Court are nonetheless instructive. The purpose of a hearing is to afford those with an interest to present their story. The potential persists for technology to aid us, facilitate us, yet challenge us, and to periodically fail. The judge's job is to find a methodology in which an effective and appropriate proceeding may nonetheless occur. Though in the midst of a pandemic the challenges may be multiplied, the provision of due process must remain at the fore, and all parties must be afforded an effective opportunity to be heard and to participate in trials.

To Zoom or not to Zoom, that is the question. The answer should come from the judge, after affording the parties their chance to advocate for their preferred procedure (live, Zoom, etc.). And, the answer should be based on consideration and facts.